Vol. 145, No. 21 — October 12, 2011

P.C. 2011-1115 September 29, 2011

Whereas, pursuant to subsection 30(1) (see footnote a) of the Transportation of Dangerous Goods Act, 1992 (see footnote b), a copy of the proposed Regulations Amending the Transportation of Dangerous Goods Regulations (Amendment 10), in the annexed form, was published in the Canada Gazette, Part Ⅰ, on February 12, 2011 and a reasonable opportunity was afforded to interested persons to make representations to the Minister of Transport with respect to the proposed Regulations;

Therefore, His Excellency the Governor General in Council, on the recommendation of the Minister of Transport, pursuant to sections 27 (see footnote c) and 27.1 (see footnote d) of the Transportation of Dangerous Goods Act, 1992 (see footnote e), hereby makes the annexed Regulations Amending the Transportation of Dangerous Goods Regulations (Amendment 10).

In accordance with section 7.2 of the Act, section 7.10 sets out compensation for a person with an approved emergency response assistance plan (ERAP) and who is authorized by the Minister to implement it to respond to a security (terrorist) incident.

If a person with an approved ERAP is contacted by the Minister and agrees, the Minister could authorize the person to respond to a security (terrorist) incident on behalf of the Government of Canada. The Minister would select an ERAP based on the appropriateness of the plan and the ability of the person to respond in a timely manner. Should the person agree to respond, the Government would pay the expenses, specified in section 7.10, that are associated with the response action, including those related to death, disability or injury. The person would have personal liability protection under section 20 of the Act.

An ERAP response to a security (terrorist) incident involving a release of dangerous goods would occur once it has been determined that all terrorist-related hazards other than the dangerous goods have been eliminated.

Under the Act, industry is responsible for responding to safety or security incidents involving dangerous goods that are offered for transport, imported, handled or transported by a known person who has an approved ERAP for those dangerous goods. This existing response program and associated activities do not change because of these Regulations, which are intended to provide emergency response in the event that there is a security (terrorist) incident involving a release of dangerous goods by unknown persons.

(1) If a person agrees to implement an approved ERAP in accordance with paragraph 7.1(b) of the Act, the following expenses are authorized for the purposes of compensation under section 7.2 of the Act:

(a) expenses related to the death, disability or injury of the person or to the death, disability or injury of any of the person’s employees or contractors if

(i) the person, the employee or the contractor is killed, disabled or injured during the implementation of the approved ERAP, and

(ii) the death, disability or injury is the result of an act or omission that was committed by the person in good faith and without negligence;

(b) the cost of the person’s employees or contractors who are reasonably required to implement the approved ERAP;

(c) the cost of using the person’s tools and other equipment, such as vehicles, pumps, hoses and generators, that are reasonably required to implement the approved ERAP;

(d) travel expenses, such as those incurred for meals, accommodation, fuel, oil and flights, for persons who are reasonably required to implement the approved ERAP;

(e) rental fees for heavy equipment, such as cranes, bulldozers, pumps, compressors and generators, that is reasonably required to implement the approved ERAP;

(f) other overhead costs that can be reasonably attributed to the implementation of the approved ERAP;

(g) the cost of repairing tools and other equipment that are damaged during the implementation of the approved ERAP;

(h) the cost of replacing

(i) single-use equipment and supplies, such as packaging, personal protective equipment, personal protective clothing, chemicals and other consumables, that are reasonably required to implement the approved ERAP,

(ii) tools and other equipment that are lost during the implementation of the approved ERAP, and

(iii) tools and other equipment that are damaged beyond repair during the implementation of the approved ERAP;

(i) the cost of repairing or replacing personal property or movables or real property or immovables that have to be damaged to implement the approved ERAP;

(j) the cost of defending any legal action for which there is no personal liability under paragraph 20(c) of the Act; and

(k) the cost of cleaning up after an incident, including handling and disposal costs for dangerous goods and contaminated materials.

(2) The following expenses are not authorized for the purposes of compensation under section 7.2 of the Act:

(a) the cost of purchasing new equipment to implement the approved ERAP; and

(b) the cost of lost business or production during the implementation of the approved ERAP.

7.11 Compensation Limits

(1) Compensation under paragraph 7.10(1)(a) is limited to the compensation that would be paid in relation to the dead, disabled or injured person if the person were insured under

(a) the Public Service Management Insurance Plan;

(b) the Public Service Health Care Plan, with hospital coverage at level III; and

(c) the Public Service Dental Care Plan.

(2) Compensation under paragraph 7.10(1)(h) in relation to the replacement of the items listed in subparagraphs (i), (ii) and (iii) is limited to the cost of an item of equivalent capability and quality.

(3) Compensation under paragraph 7.10(1)(i) in relation to damaged property is limited to the fair market value of the property immediately before it is damaged by the person who implements the approved ERAP.

7.12 Claims for Compensation

Claims for compensation must be submitted with supporting documentation to the Director General no later than three months after completion of the emergency response work.

This section is intended to accommodate more than one claim because the emergency response work may include mitigation of the danger at multiple sites or may include multiple sequential mitigation actions that take time.

A person who is not a manufacturer, producer or distributor of dangerous goods that require an ERAP, but who specializes in emergency response, may apply to have an ERAP approved under section 7.2 of this Part for the purpose of responding, in accordance with paragraph 7.1(b) of the Act, to an actual or anticipated release of dangerous goods.

COMING INTO FORCE

3. These Regulations come into force on the day on which they are registered.

REGULATORY IMPACT
ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Issue and objectives

Paragraph 7.1(b) of the Transportation of Dangerous Goods Act, 1992 (TDG Act) allows the Minister of Transport to authorize a person who has an approved emergency response assistance plan (ERAP) to respond to an actual or anticipated release of dangerous goods if the identity of the person who is required to have an approved ERAP is unknown (e.g. a national security or terrorist event). Section 7.2 of the TDG Act states that the Minister shall compensate any person who is authorized to implement an emergency response assistance plan (ERAP) in accordance with the Regulations.

The Transportation of Dangerous Goods Regulations (TDG Regulations) did not before the Amendment specify such compensation and industry may not agree to respond to a security (terrorist) incident without a clear understanding of the compensation that is available for the costs incurred during a response.

The objective of the Amendment is to provide the Government of Canada with a tool to respond efficiently and effectively to a security (terrorist) incident, where the identity of the person responsible for the actual or anticipated (orphan) release of the dangerous goods is unknown. The objective will be achieved by utilizing the existing ERAP network and infrastructure. The Amendment will ensure that the person who agrees to respond to an authorization from the Minister to implement the approved ERAP is aware of the compensation available.

Description

The Regulations Amending the Transportation of Dangerous Goods Regulations (Amendment) update Part 7, Emergency Response Assistance Plan, of the TDG Regulations by adding four new sections (sections 7.10, 7.11, 7.12 and 7.13).

The Amendment sets out the compensation for a person who has an approved ERAP and who is authorized by the Minister to respond to a security (terrorist) incident where the identity of the person responsible for the actual or anticipated (orphan) release of the dangerous goods is unknown. The Amendment lists all the costs that could be incurred in the implementation of the approved ERAP and that are eligible for compensation. In particular, this covers

expenses related to the death, disability or injury of the person or to the death, disability or injury of any of the person’s employees or contractors if

the person, the employee or the contractor is killed, disabled or injured during the implementation of the approved ERAP, and

the death, disability or injury is the result of an act or omission that was committed by the person in good faith and without negligence;

the cost of the person’s employees or contractors;

the cost of using the person’s tools and other equipment (e.g. vehicles, pumps, hoses and generators);

travel expenses (e.g. meals, accommodation, fuel, oil and flights);

rental fees for heavy equipment, such as cranes, bulldozers, pumps, compressors and generators;

other overhead costs that can be reasonably attributed to the response;

the cost of repairing tools and other equipment that are damaged during the response;

the cost of replacing single-use equipment and supplies (e.g. packaging, personal protective equipment, personal protective clothing, chemicals and other consumables), tools and other equipment that are lost or damaged beyond repair during the response;

the cost of repairing or replacing personal property or movables or real property or immovables that have been damaged during the response;

the cost of defending any legal action for which there is no personal liability under paragraph 20(c) of the Act; and

the cost of cleaning up after an incident, including handling and disposal costs for dangerous goods and contaminated materials.

The final amount of compensation for the costs listed in subsection 7.10(1) will depend on the complexity and length of the response.

The Amendment does not authorize

the cost of purchasing new equipment to implement the approved ERAP; or

the cost of lost business or production during the implementation of the approved ERAP.

The compensation limits related to the death, disability or injury of the person who implements the approved ERAP or to the death, disability or injury of any of the person’s employees or contractors is to be paid as if the person were insured under the Public Service Management Insurance Plan, the Public Service Health Care Plan with hospital coverage at Level III and the Public Service Dental Care Plan.

Claims for compensation must be submitted with supporting documentation to the Director General of the Transport Dangerous Goods Directorate, Department of Transport. Claims will be paid out of the Consolidated Revenue Fund as prescribed in subsection 7.2(2) of the TDG Act.

Finally, a person who does not require an ERAP but who specializes in emergency response will be able to apply to have an ERAP approved for the purpose of responding to a security (terrorist) incident where the identity of the person responsible for the actual or anticipated release of the dangerous goods is unknown.

Rationale

The creation of an ERAP response program somewhere within government was not considered a viable alternative. This option would be costly to establish, maintain and administer.

Established in the TDG Regulations in 1985, ERAPs are required for certain dangerous goods that necessitate specialized expertise and response equipment in the event of an incident. ERAPs are intended to quickly assist emergency responders by providing them with on-site expertise and equipment, as required, following an incident.

In the event of a security (terrorist) incident resulting in an actual or anticipated release of dangerous goods, the Minister of Transport will be able to call upon a person who holds an approved ERAP and who has the appropriate expertise and capability to handle, on behalf of the Government, the actual or anticipated release. This provides the Government with an existing efficient and effective tool to respond to a security (terrorist) incident where the identity of the person responsible for the actual or anticipated (orphan) release of the dangerous goods is unknown.

The response by the approved ERAP holder will only occur once it has been determined that the incident site is free of terrorist related hazards other than the dangerous goods. The choice of ERAP and the authorization enabling the ERAP holder to respond will be based on the appropriateness of the ERAP and the ability of the ERAP holder to respond in a timely manner. If the person who holds the approved ERAP agrees to respond, the Amendment sets out the compensation available to the ERAP holder following authorization from the Minister to respond.

The Amendment allows the Government to tap into an existing program and not have to establish a new ERAP program, maintain that program and hire and train people to respond to security (terrorist) incidents. It also ensures that the person who agrees to respond to an authorization from the Minister to implement the approved ERAP is aware of the compensation available.

Consultation

Extensive consultations have taken place across Canada since 2002, concerning proposed amendments to the TDG Act, the development of an interim order and the development of this Amendment.

In 2002, the Transport Dangerous Goods Directorate (TDG Directorate) established a Chemical, Biological, Radiological, Nuclear and Explosives (CBRNE) Response Program as a part of the federal government’s initiative on counter-terrorism. The mandate of the TDG Directorate’s CBRNE Response Program is to provide response services following a CBRNE security (terrorist) incident. Such a response would occur once all terrorist-related hazards have been eliminated other than the dangerous goods.

The CBRNE Response Program is based on the existing emergency response network and infrastructure established under the ERAP requirements in the TDG Act and Regulations. The TDG Directorate consulted with industry to seek their agreement to participate in the program.

Industry agreed and expressed a strong interest in participating in the CBRNE program as long as the Government was able to compensate them for their services, provide insurance coverage during the requested response and provide personal liability protection. Following these consultations, Transport Canada determined that the TDG Act needed to be revised to include these authorities and to enable the CBRNE Response Program to use the existing safety-related ERAP Program.

In 2004 and 2005, the Department continued consultations with the public, industry, the provinces and territories on amendments to the TDG Act that would include industry in the response to a security (terrorist) CBRNE incident.

In March 2009, in Calgary, at a seminar on CBRNE response, TDG consulted again with industry, response contractors and first responders. At that seminar, discussion included changes to the TDG Act that would enable the Minister to authorize a person who holds an approved ERAP to respond to a security (terrorist) incident, including the ability to compensate (and what those compensations would include) and the provision of personal liability protection in section 20 of an amended TDG Act.

In September 2009, in preparation for the Olympics and the G8/G20 Summits, an interim order regarding actual or anticipated releases of dangerous goods as a result of a security (terrorist) incident was drafted and offered for consultation. The draft interim order was posted on the Transport Canada Web site, was consulted extensively at meetings of the Federal/Provincial/ Territorial Task Force and the General Policy Advisory Council (Minister’s Advisory Council) and was circulated for consultation to all emergency response contractors who expressed an interest in participating in the program. The draft interim order was not signed by the Minister as there were no dangerous goods security events to cause its activation and use.

The Amendment reflects the content of the draft interim order and all the consultations with industry, emergency response contractors and first responders. Consultation included the identification of issues and concerns, and efforts to obtain a consensus, involving various groups and organizations, including emergency response contractors and other stakeholders. Costs and benefits of the compensation, alternatives, and public safety and security initiatives were discussed.

Consultation on the Transport Canada Web site and with members of the Federal-Provincial/Territorial Task Force and the General Policy Advisory Council (Minister’s Advisory Council) provided input for framing the regulatory text.

The proposed Amendment was published in Part Ⅰ of the Canada Gazette on February 12, 2011. Ten comments were received. The comments supported the proposed amendment. One commenter suggested a technical change, which was resolved in discussion with the commenter, and no change to the Amendment was required.

Implementation, enforcement and service standards

Enforcement of the Amendment will be accomplished through the existing inspection network. Emergency Response Assistance Plans are reviewed by the TDG Directorate’s Remedial Measures Specialists.